IN the COURT of the CIVIL JUDGE (Sr

1

IN THE COURT OF THE CIVIL JUDGE (Sr. Divn.) (FTC-II),

BANGALORE RURAL, Bangalore.

RA No. 117/2008

Between Rank of the Parties in

Trial court Appellate court

Smt. Chandrichandran Plaintiff Appellant

AND

Sri. Chikkanna and others. Defendants Respondents.

WRITTEN ARGUMENT BY APPELLANT.

Appellant most respectfully submits as follows:-

I. Appellant, being totally aggrieved, begs to prefer this regular appeal against the Judgment and Decree passed by learned Principal Civil Judge( Jr.Dn.),Bangalore Rural, Bangalore, in O.S.365/2004.dated 28.8.2008, sets out the facts and grounds hereafter.

II. Facts of the Case.

(a) Sy.No.11/2 measuring 1 Acre, 20 guntas of Gollarapalya, Yeswanthapura Hobli, was inherited by one Late Eranna and late Kempaiah (the two sons of Late Eraiah), who died intestate leaving behind their sons, i.e. Krishnappa son of Late Eranna, and 5 sons of Late Kempiah. The then signatories for the deal of origin (irrevocable G.P.A., sale agreement and affidavit) was therefore 1. Krishnappa son of Late Eranna, and 2. Thammayanna son of Kempiah and 3. Eranna son of Kempiah, and followed which defendants 1 to 3 and his LRS. The original layout formed, consisted of 30 sites during 1982-83, 1983-84. Until 1991, the Sale of Revenue sites and Land registration were prohibited due to the Fragmentation Act. During these periods, the transfers of Lands were affected by executing irrevocable General Power of Attorney, together with delivery of possession, acknowledging receipt for sales consideration, made on oath by Affidavit and Sale Agreement.

(b) The General Power of Attorney holder of plaintiff (who is her husband), paid the entire Sales consideration and was put in possession of site 8 and 9, in the layout formed in Sy.No.11/2, way back in 1983. The General Power of Attorney was signed by Eranna, Thammayanna, the eldest 2 brothers who had attained majority and also by Krishnappa son of Eraiah, who were then the majors. The said Power of Attorney Holder, had fenced the sites 8 and 9 together, erecting and connecting the stone pillars with barbed wire on all sides of the boundary line.

c) On the strength of the Power of Attorney dated 30.05.1983,alongwith affidavit and sale agreement executed by Eraiah, Thammayanna and Krishnappa in favour of Mr. P.K. Chandran, who in turn executed a registered Sale Deed on 4.12.2000. Hence, the Plaintiff became the Owner and got lawful possession through P.K. Chandran, as Power of Attorney holder of Original Owners.

d) Mr. P.K.Chandran (husband of plaintiff), was serving in the Indian Army, a wing of the Indian armed forces and subsequently joined Shipping Corporation Of India, on an all India competitive entry (the second line of defence) at S.C.I. Bombay, and on his retirement, plaintiff and her Power of Attorney, who is also the husband, shifted their residence to Chennai, port area for their retired livelihood (being a non-pensioner).Taking advantage of appellants absence, their non presence in Bangalore, defendants opportunistically trespassed the land, with an evil motive to grab the land, and thus pulled out the laid fencing and put up a katcha shed(which were in unfinished form, when the police was informed and when police drove the miscreants away), which has led to the present Litigation.

e) The Respondents have trespassed over the sites 8 and 9 on 17th March 2004, for which Criminal Complaint was lodged against them on 18.3.2004 with the jurisdictional TAVAREKERE Police Station. The Police Registered the Crime under Sec.447 and 427 of IPC vide CRIME F.I.R. No.55/2004 dated 24th March 2004, the police stopped the construction work and chased away the miscreants from constructing the katcha shed, while in unfinished state. Photographs submitted in court, if viewed would reveal the facts. The Police thereafter issued an endorsement that the dispute is of Civil in nature. The Plaintiff, an aggrieved ex-serviceman has approached various civil authorities in administration, of law and order authorities, inclusive of the ADC to His Excellency the Governor of Karnataka State, who responded to the Police authorities (Ref: The Principal Secretary to Governor, Raj Bhavan, Bangalore to the Superintendent of Police, Bangalore District(Rural) vide Ltr.Ref:GS930/D/2004 dated 11th May 2004, to do the needful and help but all of vain. Shri. Rabindranath Tagore IPS, the then IGP, Bangalore(Rural), advised the appellant(ex.serviceman) to seek the court of law for justice and alas the assistance sought of Karnataka Legal aid Services and thus the suit was filed on 06.04.2004 with great difficulties, as the appellant had to be shunted to Chennai to collect all the original documents and submit to the court for suit acceptance, which was mandatory, resulting in further time, money and his efforts. In the meanwhile, the defendants filed counter suit O.S. 341/2004, against their elder brothers Thammayanna and Eranna, who had executed the sale by the 1983 G.P.A. and received the Sale consideration, more importantly unfairly impleading the Appellant as Defendant No.3, for Partition of Sy.No.11/2, while the other flat owners twenty-eight (28) of them were left out, on the file of Civil Judge (Sr.Dn), to harass and humiliate.

f) The Appellant also filed an interim application for amendment of the Plaint, by adding an alternative prayer for delivery of possession. Unfortunately the learned Trial Judge, completely lost sight of the said application and without passing any order thereon has mercilessly dismissed the suit on 28th August 2008, not considering the ex-serviceman’s hard-earned land was encroached, fencing pulled out forcibly and illegally taken possession.

V. Grounds in Support of the Appeal

1. The Judgment and decree of the Trial Court are contrary to law, evidence on record and pleadings in the case.

2. It is an error to hold that there was a temporary injunction against the Appellant / plaintiff regarding the possession of suit scheduled property during the pendency of OS.365/2004, while not considering the ex-serviceman’s land was encroached, site boundary fencing pulled out forcibly and illegally taken possession. Despite “status quo” the respondents went ahead finishing and modifying the katcha shed when appellant said unfit for human living, since no ventilation itself except an unfinished entry door, who then made changes, fabricated revenue records, taking the electricity and telephone connection, bills produced during the pendancy of the case, adding to crimes.

3. The learned trial Judge has failed to consider the evidence on record and admission made by DW1 regarding the Sale of sites, division of property, formation of layout etc. Ex P1, P2 and P4 are not considered and the recitals not taken into Consideration.

4. It is respectfully submitted that forcible Criminal trespass on the suit schedule property, on the eve of the institution of the suit cannot be construed as legal possession or settled possession of the defendants. A FORCIBLE TEMPORARY OCCUPATION DOES NOT AMOUNT TO POSSESSION, in such circumstances the possession legally continues with the registered land owner.

5. In the present case the plaintiff has proved her legal possession from December 2000 and the POSSESSION OF HER HUSBAND, WAY BACK FROM MAY 1983 CONTINUOUSLY, which is transparent. The Sale Deed in favour of the plaintiff was not challenged. Criminal trespass on 17.03.2004, leading to Criminal complaint and instituting the suit through the help of the Legal Aid Services Authority, by 6.4.2004 which therefore cannot lead to the finding that defendant is in possession as on the date of the suit. IT IS SUBMITTED, THAT THE CONCEPT OF POSSESSION IS SOMETHING MUCH MORE THAN FORCIBLE PHYSICAL OCCUPATION. The learned trial Judge has misconstrued, by committing an error to conclude that the same amounts to admission of possession of Defendant.

6. Hence, it is an error apparent, to hold that there an injunction against the plaintiff, regarding possession of the suit schedule property.

7. During the Cross-Examination. DW1, admitted that one acre of Land was formed into sites in Sy.No.11/2, and the sites were sold to 3rd parties and Sales Consideration was also received by the defendants. It was also admitted that it is not cultivated land and as per the voters list marked in the case they are residing only in the village (Gramatana). This is contrary to the assertion that one of the defendants is residing in the encroached suit schedule house. The learned Trial Judges has not applied her mind and not considered the same in recording the findings.

8. It is respectfully submitted that the validity of the Sale Deed and the Power of Attorney is not challenged. It is also contended that the Documents executed by Eranna and Thammayanna, are not binding on the Defendants. In the circumstances of the reasoning adopted by the trial judges is perverse.

9. It is respectfully submitted that in view of the admission by DW1 that the sites were formed and sold and the suit schedule property are sites 8 and 9 formed in such layout. The purchaser namely the Plaintiff /Appellant is entitled to continue the claim as absolute owners and she is in lawful possession.

10. The Trial Court has committed an error of Jurisdiction, in not considering the Application for amendment of the prayer by seeking an alternate prayer for possession. The said application is pending and the arguments were made by the appellant. Two reported decisions of the Hon’ble Supreme Court etc. were cited and copies furnished. The trial Judge has committed error of Jurisdiction in not taking into consideration of such application and proceeded to judgment, without passing an order on IA, nor granting the alternate relief of possession.

11. Further submits, more importantly that the respondents have not submitted any documentary evidence to substantiate their title, rights possession and interest over the suit scheduled properties. They have no approved plan by competent authority to submit and identify their rights over the suit scheduled property.

12. The respondents have not made any other owners of the said layout as a party, which clearly indicates to harass and humiliate the ex-serviceman owner of sites 8 & 9, staying elsewhere (Chennai), to knock-off the appellant’s hard-earned land. All these land grab attempts, owing to the high rise land prices that occurred due to urban modernization by improved roads, highways etc.

11. The Trial Court failed to record a finding that the application for amendment was not opposed by the defendants in view of the fact that the no argument were advanced on behalf of the defendant and the legal proposition that the possession follows title has to be applied to the facts of the case.

12. The suit is for permanent injunction and ad-volerem court fee of Rs.25/-had been paid under section 26 read with section 49A Karnataka Court fee and suit Valuation Act.

13. For purpose of court fee appeal is valued at Rs.1000/- and for purposes of Jurisdiction the suit schedule property is valued at Rs.1,59,000/- The plaintiff is prepared to pay additional Court fee, if the suit is decreed for possession.

PRAYER

Therefore, the Appellant prays that the setting aside the judgment and decree of trial court. The Honorable Court may be pleased to decree the suit for permanent injunction or alternatively for possession of suit schedule property with costs throughout.

Bangalore: ADVOCATE FOR APPELLANT APPELLANT

Date : 20/09/2010.